Category: 3-LawSometimeCommentary

On June 23, 2016, the Supreme Court decided Fisher v. Univ. of Texas at Austin. This is the second time the case has come before the high court. Abigail Fisher, a white female, applied for admission to the University of Texas at Austin (the University) but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” -- On its second trip to the Supreme Court, the question was whether the Fifth Circuit’s re-endorsement of the University’s use of racial preferences could be sustained under the Equal Protection Clause. By a vote of 4-3, the Supreme Court affirmed the judgment of the Fifth Circuit. Justice Kennedy delivered the opinion of the court, which held that the race-conscious admissions program in use at the time of Fisher’s application was narrowly tailored and lawful under the Equal Protection Clause. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kagan took no part in the consideration or decision of the case. -- To discuss the case, we have Roger B. Clegg, who is President and General Counsel, Center for Equal Opportunity.

On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially. -- By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed. -- Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case. -- To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation.

On March 1, 2016, the Supreme Court decided Gobeille v. Liberty Mutual Insurance Company. -- Liberty Mutual Insurance Company (Liberty Mutual) operates a self-insured employee health plan through a third-party administrator. Vermont state law requires such plans to file with the State reports concerning claims data and certain other information. When Vermont subpoenaed claims data from Liberty Mutual’s third-party administrator, Liberty Mutual sued and argued that the federal Employment Retirement Income Security Act of 1974 (ERISA) preempted the Vermont statute. The district court found no preemption and ruled in favor of Vermont. On appeal a divided panel of the U.S. Court of Appeals for the Second Circuit reversed and held that ERISA preemption did apply. -- The question before the Supreme Court was whether the Second Circuit erred in holding that ERISA preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. -- By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Kennedy delivered the opinion of the Court, which held that ERISA’s express preemption clause requires invalidation of the Vermont reporting statute as applied to ERISA plans. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Alito, and Kagan. Justices Thomas and Breyer also filed concurring opinions. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. -- To discuss the case, we have Joshua P. Ackerman, who is an Associate at Bartlit Beck Herman Palenchar & Scott LLP.

On June 13, 2016, the Supreme Court decided Halo Electronics v. Pulse Electronics, which was consolidated with Stryker Corp. v. Zimmer. Both of these cases involved claims of patent infringement relating to the sale or marketing of various inventions. Both also involved a determination by the U.S. Court of Appeals for the Federal Circuit that an award of enhanced damages for infringement under 35 U.S.C. § 284 was not appropriate, after applying the Circuit’s two-part objective/subjective test for willful or bad-faith infringement set forth in In re Seagate Tech., LLC. -- The question before the Supreme Court was whether the Federal Circuit’s refusal to allow enhanced damages absent a finding of willfulness under its two-part test was inconsistent with § 284, which provides that in a case of infringement, courts “may increase the damages up to three times the amount found or assessed.” -- By a vote of 8-0, the Supreme Court vacated the Federal Circuit’s judgment and remanded the case. Chief Justice Roberts delivered the opinion for a unanimous Court, which held that the Federal Circuit’s Seagate test unduly confined the ability of district courts to exercise the discretion conferred on them by § 284. Justice Breyer filed a concurring opinion in which Justices Kennedy and Alito joined. -- To discuss the case, we have Gregory Dolin who is Associate Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law.

On Monday, the Supreme Court invalidated two provisions of Texas’ omnibus abortion law known as HB2. The 5-3 decision in Whole Woman’s Health v. Hellerstedt was a big win for abortion rights advocates, many of whom expected things to turn out the other way. On today’s show, we speak with Amy Hagstrom Miller, founder and CEO of the abortion provider that challenged the Texas law. We also sit down with Slate’s own Mark Joseph Stern to recap the highlights – and lowlights – of one a Supreme Court term that was chock-full of unexpected twists and turns.  

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Marriage equality. Voting Rights. Obamacare. These are among the many enormously consequential causes that have fallen to Donald Verrilli to defend at the Supreme Court over the past five years. On this week’s episode, he looks back on some of the highlights – and lowlights – of his term as U.S. Solicitor General. We’re also joined by Sherrilyn Ifill, President of the NAACP Legal Defense Fund, to discuss this week’s big affirmative action win at the Supreme Court. Many court-watchers were surprised by Justice Anthony Kennedy’s vote in Fisher v University of Texas, but not Ifill. She tells us why. Transcripts of Amicus are available to Slate Plus members. Consider signing up today! Members get bonus segments, exclusive member-only podcasts, and more. Sign up for a free trial today here. 

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On April 20, 2016, the Supreme Court heard oral argument in Bernard v. Minnesota, which was consolidated with Birchfield v. North Dakota and Beylund v. Levi. -- In Bernard, William Robert Bernard, Jr., admitted he had been drinking, but he denied driving his truck and refused to perform a field sobriety test. He was arrested on suspicion of driving while impaired and taken to the police station, where he refused to consent to a chemical test in violation of Minnesota state law. Bernard was charged with two counts of first-degree test refusal pursuant to state law. In Birchfield, Danny Birchfield was arrested after failing field sobriety tests after he had driven his vehicle into a ditch, but he refused to consent to a chemical test, resulting in a misdemeanor charge. He moved to dismiss the charge and claimed that the state law in question violated his Fourth Amendment right against unreasonable search and seizure. In Beylund, Steve Beylund consented to a blood alcohol to test to confirm he was driving under the influence, but only after being informed it was a criminal offense to refuse a blood alcohol test in North Dakota. The test confirmed he was over the legal limit, and Beylund was charged with driving under the influence. -- The men in these cases challenged state statutes criminalizing refusal to submit to a chemical test, arguing among other things that the statutes violated the Fourth Amendment. The Supreme Court of Minnesota and the Supreme Court of North Dakota rejected their respective challenges. The question before the U.S. Supreme Court in these consolidated cases is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. -- To discuss the case, we have Jonathan Ellis, who is an Associate at Latham & Watkins.

On May 19, 2016, the Supreme Court decided CRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST Van Expedited (CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them. In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million. -- On a second appeal, the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for a fees award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation. -- The U.S. Supreme Court granted CRST’s subsequent petition for certiorari, vacating the judgment of the Eighth Circuit and remanding the case by a vote of 8-0. Justice Kennedy’s opinion for a unanimous Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party for purposes of awarding attorney’s fees award. Justice Thomas filed a concurring opinion. -- To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day.

On June 6, 2016, the Supreme Court decided Simmons v. Himmelreich. This case arose out of lawsuits filed by federal prisoner Walter Himmelreich after he was assaulted by a fellow prisoner. Himmelreich’s initial lawsuit, filed against the United States, was ultimately dismissed pursuant to an exception under the Federal Tort Claims Act (FTCA) for certain discretionary actions by prison officials. While that suit was still pending, however, Himmelreich filed a second suit: a constitutional tort action against individual Bureau of Prisons employees. When Himmelreich’s initial suit was dismissed, these employee defendants argued that his action against them was foreclosed by the FTCA’s “judgment bar” provision, under which a judgment in an FTCA suit forecloses any future suit against individual employees. The District Court granted summary judgment in favor of the employees. On appeal the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. The Supreme Court then granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “exception” to the FTCA. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Sixth Circuit and remanded the case. Justice Sotomayor delivered the opinion for a unanimous Court, holding that the FTCA’s judgment bar provision does not apply to claims dismissed because they fall within an FTCA "exception." -- To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

On June 9, 2016, the Supreme Court decided Williams v. Pennsylvania. Terrance Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court of Pennsylvania affirmed Williams’ conviction and sentence, and his initial attempts to obtain state postconviction relief failed. His subsequent petition for federal habeas relief also failed. He again sought post-conviction penalty-related relief in state court and prevailed in the Court of Common Pleas on a claim of unlawful evidence suppression. On appeal, however, the Pennsylvania Supreme Court reversed the grant of relief and lifted the stay of execution (though a temporary reprieve was later granted by the governor for other reasons). The Chief Justice of the Pennsylvania Supreme Court, Ronald Castille, who had joined the opinion reversing the grant of relief to Williams, had also been the District Attorney for Philadelphia during Williams’ trial, sentencing, and appeal. In that capacity, Castille had authorized his office to seek the death penalty for Williams. Williams had moved to have Chief Justice Castille recuse himself from hearing the appeal of post-conviction relief, but Castille declined to do so. -- The central question before the U.S. Supreme Court was whether Justice Castille’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. By a vote of 5-3, the Supreme Court vacated the decision of the Pennsylvania Supreme Court and remanded the case. Justice Kennedy delivered the opinion of the Court, which held that under the Due Process Clause, where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Kennedy’s majority opinion. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Thomas also filed a dissenting opinion. -- To discuss the case, we have Cassandra Burke Robertson, who is Professor of Law, Laura B. Chisolm Distinguished Research Scholar, and Director, Center for Professional Ethics at Case Western Reserve University School of Law.